Kinsley v. Ace Speedway Racing, Ltd.
| Citation | 284 N.C.App. 665,877 S.E.2d 54 |
| Decision Date | 02 August 2022 |
| Docket Number | COA21-428 |
| Parties | Kody H. KINSLEY, in his official Capacity as Secretary of the North Carolina Department of Health and Human Services, Plaintiff, v. ACE SPEEDWAY RACING, LTD., After 5 Events, LLC, 1804-1814 Green Street Associates Limited Partnership, Jason Turner, and Robert Turner, Defendants. |
| Court | Court of Appeal of North Carolina (US) |
Solicitor General Ryan Y. Park, by Assistant Solicitor General Nicholas S. Brod and Solicitor General Fellow Zachary W. Ezor, and Attorney General Joshua H. Stein, by Assistant Attorney General John P. Barkley, for Plaintiff-Appellant.
Kitchen Law, PLLC, by S.C. Kitchen, for Defendants-Appellees.
Jeanette K. Doran, for amicus curiae North Carolina Institute for Constitutional Law.
¶ 1 This case makes us consider the use of overwhelming power by the State against the individual liberties of its citizens and how that use of power may be challenged. The people of North Carolina recognized the importance of this balance in ratification of our Constitution in 1868. The challenged act here involves the closing of a business by a cabinet secretary. Plaintiff Kody H. Kinsley,1 in his official capacity as Secretary of the North Carolina Department of Health and Human Services, issued an order of abatement to close a racetrack. The Secretary issued the abatement order only after the Governor's use of an executive order and his direct request to local law enforcement to close the track failed.
¶ 2 Amidst the onset of the COVID-19 pandemic, the Governor issued executive orders placing restrictions on the rights of the people of North Carolina to gather. The Secretary appeals from the trial court's order denying his motion to dismiss two counterclaims brought by Defendants Ace Speedway Racing, Ltd., its affiliates, and its owners. Ace's counterclaims propose that the Governor's orders were enforced upon them without justification and without equal protection of law. Ace's counterclaims are constitutional claims alleging (1) executive orders issued by the Governor in response to the COVID-19 pandemic were an unlawful infringement on Ace's right to earn a living as guaranteed by our Constitution's fruits of labor clause, and (2) the Secretary's enforcement actions against Ace under the executive order constituted unlawful selective enforcement. The Secretary argues Ace failed to present colorable constitutional claims, and therefore failed to overcome the Secretary's sovereign immunity from suit.
¶ 3 In this appeal, we are asked to decide whether Ace has presented colorable constitutional claims for which our courts could provide a remedy. We hold that Ace pled each of its constitutional claims sufficiently to survive the Secretary's motion to dismiss. We affirm the trial court's order.
¶ 4 Ace operates ACE Speedway in Alamance County as a racetrack, hosting car races with a maximum audience seating capacity of around 5,000 people. To feasibly host a race and pay its staff of roughly forty-five employees, Ace needs "around a thousand fans" to attend each race.
¶ 5 In March 2020, the COVID-19 virus began spreading across the United States. State governments across the country began to impose restrictions on their citizens’ right to gather, conduct public activities, and engage in in-person means of commerce. On 20 May 2020, pursuant to emergency directive authority granted by N.C. Gen. Stat. § 166A-19.30, Governor Roy Cooper issued Executive Order 141 decreeing, in relevant part, that "mass gatherings" were temporarily prohibited in North Carolina. Exec. Order No. 141, 34 N.C. Reg. 2360 (May 20, 2020). Order 141 defined "mass gatherings" as "an event or convening that brings together more than ten (10) people indoors or more than twenty-five (25) people outdoors at the same time in a single confined indoor or outdoor space, such as an auditorium, stadium, arena, or meeting hall." Id.
¶ 6 The mass gathering prohibition in Order 141 nullified Ace's ability to hold economically feasible racing events at ACE Speedway. On 22 May 2020, the Burlington Times-News published an article featuring statements from Defendant Jason Turner, an owner of ACE Speedway, regarding the restrictions in Order 141 and his plans to nonetheless hold races at ACE Speedway. The article quoted Turner as follows:
I'm going to race and I'm going to have people in the stands.... And unless they can barricade the road, I'm going to do it. The racing community wants to race. They're sick and tired of the politics. People are not scared of something that ain't killing nobody. It may kill .03 percent, but we deal with more than that every day, and I'm not buying it no more.
Ace followed through on Turner's statement and began to hold races during the summer of 2020.
¶ 7 Ace held its first race of the season at ACE Speedway on 23 May 2020. The event drew an audience of approximately 2,550 spectators. On 15 May 2020, a week before the first race, Ace met with local health and safety officials. Ace and the local officials agreed upon health precautions for its events, including contact tracing, temperature screenings, social distancing in common areas, and reduced and distanced audience seating arrangements. With each of its health precautions in place, Ace held races on May 23, May 30, and June 6, hosting over 1,000 spectators at each event.
¶ 8 On 30 May 2020, before that afternoon's race, the Governor's office requested that Alamance County Sheriff Terry Johnson personally ask Ace to stop holding racing events in violation of Order 141. The Sheriff relayed the Governor's message and informed Ace that they could face sanctions if they did not comply. After Ace held the race on May 30, the Sheriff publicly stated that he would not take any further actions to enforce Order 141. On 5 June 2020, the Governor's office sent a letter to the Sheriff and Ace, once again advising that Ace was conducting racing events in violation of Order 141 and potentially subject to sanctions. Ace held its third race on June 6, the following day.
¶ 9 On 8 June 2020, the Secretary issued an order demanding that Ace abate further mass gatherings at ACE Speedway. This Abatement Order explained that Ace had "operated openly in contradiction of the restrictions and recommendations in [Order 141,]" and, therefore, "immediate action" was necessary to prevent "increased exposure to thousands of people attending races at ACE Speedway, and thousands more who may be exposed to COVID-19 by family members, friends, and neighbors who have attended or will attend races at ACE Speedway." The Abatement Order instructed Ace to close its facilities until the expiration of Order 141, or until such time as Ace developed a plan to host events in full compliance with Order 141's mass gathering restrictions. The Abatement Order also required Ace to "notify the public by 5:00 p.m. on [9 June 2020] that its upcoming races and other events ... [were] cancelled[,]" and to notify DHHS by 5:00 p.m. on June 9 that it had complied. Ace declined to close its facilities or provide timely notice to the public and DHHS as required by the Abatement Order.
¶ 10 On 10 June 2020, the Secretary filed a complaint, motion for temporary restraining order, and motion for preliminary injunction seeking to enforce the terms of the Abatement Order. On 11 June 2020, Judge D. Thomas Lambeth, Jr., entered an order granting the Secretary's temporary restraining order and "enjoined [Ace] from taking any action to conduct or facilitate a stock car race or other mass gathering at ACE Speedway[.]" On 10 July 2020, following a hearing on the matter, Judge Lambeth entered an order granting the Secretary's motion for preliminary injunction and enjoining Ace "from taking any action prohibited by the Abatement Order[.]"
¶ 11 On 25 August 2020, Ace filed its answer to the Secretary's complaint and its own counterclaims, including the two constitutional claims at issue in this appeal: (1) infringement upon Ace's right to earn a living and (2) selective enforcement of Order 141 against Ace.
¶ 12 On 4 September 2020, the Governor issued Executive Order 163, which replaced Order 141 and loosened Order 141's mass gathering restrictions to allow a total of fifty people in outdoor gatherings. The Secretary voluntarily dismissed his complaint in this matter against Ace because the terms of the Abatement Order were moot and no longer enforceable as written. Ace did not dismiss its counterclaims.
¶ 13 On 2 December 2020, the Secretary moved to dismiss Ace's counterclaims, arguing that each counterclaim was barred by sovereign immunity from suit. The trial court heard arguments on the justiciability of each claim. In January 2021, Judge John M. Dunlow entered an order (the "Denial Order") denying the Secretary's motion to dismiss each of Ace's constitutional claims.2 The Secretary filed notice of appeal from the Denial Order on 17 February 2021.
¶ 14 The matter before us on appeal is whether the trial court erred by denying the Secretary's motion to dismiss Ace's two constitutional counterclaims on grounds of sovereign immunity from suit.
¶ 15 We first address the timeliness of the Secretary's appeal from the denial of his motion to dismiss Ace's counterclaims. Ace moves to dismiss the Secretary's appeal on grounds that the Secretary's notice of appeal was untimely because he failed to comply with the terms of Rule 3(c) of the North Carolina Rules of Appellate Procedure.
¶ 16 "The provisions of Rule 3 are jurisdictional, and failure to follow the rule's prerequisites mandates dismissal of an appeal." Bailey v. State , 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (citation omitted). Rule 3(c) dictates that a party to a civil action "must file and serve a notice of appeal ... within thirty days after entry of judgment [or order] if the party has been served with a copy of the judgment [or order] within the...
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